ITn  tbe  Court  otdlaime. 


No.  23,214. 


THE  EASTERN  CHEROKEES 

vs. 

THE  UNITED  STATES. 


Order. 


The  special  agent  for  the  enroHment  of  the  Eastern 
Cherol^ees,  Guion  Miller,  having  made  a  report  under  date 
of  February  18,  1907,  to  the  Commissioner  of  Indian 
Affairs,  respecting  the  distribution  of  the  fund  arising 
from  the  judgment  hereinbefore  awarded,  and  the  Secre- 
tary of  the  Interior  having  referred  said  report  on  Feb- 
ruary 20,  1907,  to  this  court  for  consideration  of  the 
matters  therein  set  out,  it  is  ordered  this  5th  day  of 
March,  1907,  that  argument  be  heard  upon  the  matters 
involved  in  said  report,  on  Monday,  April  8,  1907;  and 
■that  due  notice,  by  publication,  shall  be  given  to  all 
parties  in  interest  to  appear  on  said  clay.  Said  notice 
shall  be  in  form  as  follows: 

Notice  is  hereby  given  to  all  Eastern  Cherokees,  that 
the  Secretary  of  the  Interior  has  submitted  to  the  Court 
of  Claims  for  its  decision,  various  questions  respecting 
the  distribution  of   the  fund  arising  from  the  judgments 

4896—1 


of  the  Court  of  Claims  of  May  18, 1905,  and  May  28, 1906, 
involving  among  others,  the  following  points: 

First.  Shall  the  rolls  of  1851  be  used  as  the  exclusive 
basis  for  the  present  enrollment? 

Second.  Shall  the  distribution  be  per  stirpes  or  per 
capita? 

Third.  If  per  stirpes,  what  disposition  shall  be  made 
of  those  portions  for  which  there  have  been  no  applica- 
tions. 

The  Court  of  Claims  has  fixed  Monday,  April  8,  1907, 
for  hearing  argument  upon  these  questions,  when  all 
parties  in  interest  may  be  represented. 

Said  publication  shall  be  made  in  the  following  news- 
papers: 

In  Indian  Territory. —  Vinita  "Leader,"  Muscogee 
''Phoenix,"  Tahlequah  "Arrow,"  Bartersville  "Exami- 
ner," Fort  Gibson  "Post,"  Claremore  "Progress,"  and 
Sallisaw  "  News." 

In  Arkansas. — Fort  Smith  "Elevator." 

In  Georgia. — Canton  '^Cherokee  Advance,"  Dalton 
"Argus,"  and  Rome  "Tribune." 

In  Mississippi. — Holly  Springs  "Reporter." 

In  North  Carolina. — Asheville  "Citizen,"  Murphy 
"Cherokee  Scout,"  and  Waynesville  "Courier." 

In  Tennessee. — Athens  "Post,"  Chattanooga  "Times," 
Cleveland  "Banner,"  and  Ducktown  "Gazette." 

In  Virginia. — Abingdon  "Virginian  "and  Marion  "Demo- 
crat." 

Department  of  the  Interior, 
Washington,  February  20,  1907 . 
The  Chief  Clerk,  the  Court  of  Claims. 

Sir:  I  transmit  herewith  a  communication  dated  18th 
instant  addressed  to  the  Commissioner  of  Indian  Affairs 
by  Mr.  Guion  Miller,  Special  Agent  for  the  Enrollment  of 


Eastern  Cherokees,  with  three  enclosures,  regarding  diffi- 
culties which  have  developed  in  the  prosecution  of  his 
work  of  making  said  enrollment. 

Mr.  Miller  suggests  that  the  Court  of  Claims  be  re- 
quested to  give  him  further  instructions  in  the  matter, 
and  that  certain  questions,  six  in  number,  specified  in 
his  said  communication,  be  submitted  for  the  determina- 
tion of  the  court.  This  suggestion  is  concurred  in  by  the 
Indian  Office;  also  the  further  suggestion  that  the  mat- 
ter be  given  earh^  consideration,  and  a  ruling  obtained, 
if  possible,  before  the  summer  vacation  of  the  court. 

The   matter  is,  therefore,  respectfully  submitted,  with 
request  for  an  early  consideration  and   determination  of 
the  questions  presented  by  Special  Agent  Miller. 
Very  respectfully, 

Thos.    Ryan, 
First  Assistant  Secretary, 
1489  Ind.  Div.,  1907. 
4  enclosures. 
JES. 

Office  of  Indian  Affairs, 
Washington,  D.  C,  Fehruary  18,  1907. 
The  Honorable,  Commissioner  of  Indian  Affairs, 

Washington,  D.  C. 
Sir:  In  the  matter  of  the  enrollment  of  the  Eastern 
Cherokees,  I  have  the  honor  to  report  that  on  January 
29,  1907,  Belva  A.  Lockwood,  claiming  to  act  on  behalf 
of  herself  and  a  large  number  of  her  clients  as  well  as  a 
large  number  of  attorneys,  filed  a  petition  in  this  office, 
asking  among  other  things  that  the  Department  ruling 
of  August  20,  1906,  which  in  effect  limited  the  right  to 
enrollment  of  the  Eastern  Cherokees  to  such  as  were 
enrolled  for  the  per  capita  payment  made  to  the  Eastern 
Cherokees  in  1851,  where  living,  and  to  the  legal  repre- 
sentatives of  those  so   enrolled  who  have    since  dietl,  be 


changed  so  as  to  authorize  the  enrollment  of  claimants 
who  can  prove  that  they  are  the  descendants  of  Eastern 
Cherokees  enrolled  under  the  provisions  of  the  treaty  of 
1835-6,  but  who  can  not  show  that  they,  or  any  of  their 
ancestors,  were  enrolled  in  1851. 

The  petition  makes  the  claim  that  the  limitation  to 
the  rolls  of  1851  is  in  conflict  with  the  terms  of  the 
judgment  of  the  Supreme  Court  in  the  case,  which  made 
no  reference  to  the  rolls  of  1851,  and  that  for  this  reason 
the  limitations  contained  in  the  order  of  August  20, 
1906,  are  improper  and  illegal.  The  petitiongoes  further 
and  claims  that  the  order  of  August  20,  1906,  does  not 
in  fact  comply  with  the  terms  of  the  decree  of  the  Court 
of  Claims  of  May  28,  1906. 

This  petition  puts  directly  before  this  office  a  Cjuestion 
which  has  been  informally  raised  by  a  large  number  of 
attorneys  in  conversation  with  me  relative  to  this  case, 
and  in  c^uite  a  large  number  of  applications  which  have 
been  filed  for  participation  in  the  Eastern  Cherokee 
fund. 

The  matter  is  of  such  vital  importance  that  I  deem  it 
my  duty  to  present  the  matter  fully,  and  at  the  same 
time  to  call  attention  to  other  difficulties  which  have 
presented  themselves  to  me  in  the  consideration  of  this 
work,  and  which  are  more  or  less  involved  in  the  discus- 
sion of  the  petition  above  referred  to. 

The  decree  of  the  Court  of  Claims  of  May  18,  1905,  in 
treating  of  the  disposition  to  be  made  of  the  fund  now 
to  be  distributed,  after  providing  for  the  payment  of 
attorneys'  fees  and  the  expenses  of  the  enrollment,  con- 
tains this  language:  "Second,  the  remainder  to  be  dis- 
tributed directly  to  the  Eastern  and  Western  Cherokees, 
who  are  parties  either  to  the  Treaty  of  New  Echota,  as 
proclaimed  May  23,  1836,  or  the  Treaty  of  Washington 
of  August  6,  1846,  as  individuals,  whether  east  or  west 


of  the  Mississippi  River,  or  to  the  legal  representatives 
of  sueh  individuals." 

The  Supreme  Court  modified  this  portion  of  the  de- 
cree by  eliminating  the  Old  Settlers,  that  court  making 
use  of  this  language:  "On  consideration  whereof,  it  is 
now  here  ordered  and  adjudged  by  this  court  that  the 
second  subdivision  of  the  fourth  paragraph  of  the  decree 
of  the  said  Court  of  Claims  in  this  cause  be  modified  so 
as  to  direct  the  distribution  to  be  made  to  the  Eastern 
Cherokees,  as  individuals,  whether  east  or  west  of  the 
Mississippi  River,  parties  to  the  treaty  of  1835-6  and 
1846,  and  exclusive  of  the  Old  Settlers,  and,  as  so  modi- 
fied, be,  and  the  same  is  hereby,  affirmed." 

It  will  be  noted  that  neither  the  original  decree  of  the 
Court  of  Claims  nor  this  modification  by  the  Supreme 
Court  of  the  United  States,  makes  any  reference  to  the 
rolls  of  1851;  it  will  also  be  noticed  that  in  the  Supreme 
Court  'Order  the  language,  "or  to  the  legal  representa- 
tives of  such  individuals,"  contained  in  the  original  de- 
cree of  the  Court  of  Claims  is  not  retained,  and 
it  may  be  here  further  noted  that  this  language  is 
not  repeated  in  the  final  decree  of  the  Court  of  Claims 
of  May  28,  1906. 

In  said  decree  of  May  28,  1906,  the  court,  after  quoting 
the  language  of  the  mandate  of  the  Supreme  Court  con- 
taining the  modification  above  referred  to,  proceeds  as 
follows:  "And  in  accordance  with  said  decree,  as  it  was 
directed  to  be  and  is  now  modified,  it  is  further  ordered 
and  decreed  that  the  Secretary  of  the  Interior  prepare, 
or  cause  to  be  ]3repared,  a  list  or  roll  of  all  })ersons  com- 
ing within  the  said  description  entitled  to  share  in  the 
distribution  of  said  fund;  and  in  preparing  the  said  list 
or  roll  of  such  persons,  tJie  Seeretari/  of  the  Interior 
shall  accept  as  a  basis  for  the  distribution  of  said  fund 
the  rolls  of  18ol,  upon  which  the   per  capita  pai/nient 


6 

to  the  Eastern  Cherohees  loas  made,  and  make  such  dis- 
tribution in  pursuance  of  article  9  of  the  treaty  of  1846." 

The  order  of  August  20,  1906,  was  based  upon  this 
language  contained  in  the  decree  of  May  28,  1906. 

Tliat  it  was  the  intention  of  the  Court  of  Claims  to 
have  this  payment  made  per  stirpes  is  evident  from  the 
language  of  the  original  decree,  wherein  it  states  that 
the  fund  was  to  be  distributed  to  the  parties  to  the 
treaties  of  1835-6  and  1846,  as  individuals,  "  or  to  the 
legal  representatives  of  such  individuals;''  nor  does  there 
appear  to  be  anything  in  the  mandate  of  the  Supreme 
Court  in  conflict  with  the  idea  of  a  per  stirpes  payment. 
In  order  that  there  may  be  a  per  stirpes  payment  there 
must  be  some  fixed  time,  as  of  which  the  enrollment  is 
to  be  made,  in  order  that  the  exact  amount  of  each  dis- 
tributive share  may  be  determined,  and,  furthermore,  it 
would  be  absolutely  essential  to  determine  the  names  of 
the  individuals  through  whom  the  per  stirpes  distribu- 
tion is  to  be  made. 

I  am  informed  that  when  the  final  decree  w^as  under 
consideration  by  the  Court  of  Claims  the  attention  of 
the  court  was  called  to  the  fact  that  the  Treaty  Roll  of 
1835-6  was  incomplete  in  that  it  gave  only  the  names  of 
the  heads  of  families,  with  the  number  in  each  family, 
but  without  giving  the  individual  names  of  the  other 
members  of  the  family.  There  was,  I  believe,  no  roll  made 
under  the  treaty  of  1846.  I  am  further  informed  that 
the  court  was  advised  that  while  the  Treaty  Roll  of 
1835-6  w^as  incomplete,  that  the  rolls  of  1851,  upon  which 
the  per  capita  payment  was  made  to  the  Eastern  Chero- 
kees,  were  complete,  and  did  give  the  individual  names 
of  each  Indian  enrolled.  As  I  understand  it,  this  was  the 
primary  cause  of  the  Court  of  Claims  inserting  in  the  de- 
cree the  provision  relative  to  the  rolls  of  1851.  It  was 
naturally  supposed  that,  inasmuch  as  the  rolls  of  1851 
were  intended  to  contain  the  names  of  all   Eastern  Cher- 


okees  entitled  under  the  provisions  of  the  treaties  of 
1835-6  and  1846,  that  no  hardship  would  be  imposed  by 
adopting  these  rolls  as  conclusive  evidence  of  just  who 
were  so  entitled  at  that  time,  and  that,  as  no  other  com- 
plete rolls  were  available,  the  necessities  of  the  case 
would  require  that  the  rolls  of  1851  be  adopted.  As  I 
am  further  advised  no  question  was  then  raised  as  to 
whether  or  not  this  provision  was  in  conflict  with  the 
terms  of  the  mandate  of  the  Supreme  Court. 

If  this  were  a  controversy  affecting  white  men,  sui  juris, 
it  could  be  easily  maintained  that  the  enrollment  of  1&51, 
having  been  made  under  direct  authority,  was  in  effect  a 
judicial  determination  of  all  who  were  entitled  under 
the  treaties  of  1835-6  and  1846,  to  the  exclusion  of  all 
others  not  enrolled.  There  is  a  serious  question,  how- 
ever, as  to  whether,  in  a  case  involving  the  rights  of 
Indians,  who  stand  in  the  relation  of  wards  to  the  Gov- 
ernment, an  enrollment  made  independently  by  the  Gov- 
ernment of  its  own  motion  and  without  the  fullest 
publication  and  notice  to  the  Indians,  could  be  held  to 
be  a  judicial  determination  of  the  rights  of  the  Indians, 
to  the  exclusion  of  individuals  who  may  have  removed 
from  the  locality,  and  who  may  have  been  in  ignorance 
of  the  fact  that  an  enrollment  was  taking  place. 

As  a  matter  of  fact,  as  I  am  informed,  and  am  lead  to 
believe  by  some  of  the  applications  already  on  file,  there 
are  c|uite  a  number  of  Eastern  Cherokees  who  can  prove 
that  they  or  their  ancestors  were  duly  enrolled  under  the 
treaty  of  1835-6,  who  will  be  unable  to  prove  that  they 
or  their  ancestors  were  so  enrolled  in  1851.  By  way  of 
illustration,  I  wnll  cite  the  case  of  one  applicant,  which 
affects  a  group  of  aj^plicants  similarly  situated. 

Sarah  Poe,  of  Kansas  City,  Mo.,  who  was  born  in 
1857,  has  filed  application  No.  2028,  claiming  through 
her  mother,  Martha  D.  Harralson,  to  her  grandfather, 
Alexander  Brown.     From  affidavits  filed  in  this  group  of 


applications,  it  appears  to  be  quite  well  established  that 
Alexander  Brown  was  an  Eastern  Cherokee  Indian,  com- 
ing originally  from  McMinn  County,  Tennessee,  and  that 
shortly  after  the  treaty  of  1835-6  he  removed  to  Mis- 
souri, where  he  died  about  1840.  The  Treaty  Roll  of 
1835-6  shows  Alexander  Brown  to  have  been  enrolled  at 
that  time  apparently  with  two  children,  but  it  does  not 
appear  that  his  children  were  enrolled  in  1851  ;  doubt- 
less due  to  the  fact  that  they  were  so  far  removed  from 
their  original  dwelling  place.  Clearly,  if  this  applicant 
can  establish  the  fact  that  her  grandfather,  Alexander 
Brown,  was  the  Alexander  Brown  whose  name  was  en- 
rolled under  the  treaty  of  1835-6,  she  will  have  brought 
her  case  within  the  express  terms  of  the  mandate  of  the 
Supreme  Court  of  the  United  States,  but  owing  to  the 
fact  that  her  mother  was  not  enrolled  in  1851,  it  is 
ecjually  clear  that  under  the  order  of  August  20,  1906, 
based  on  the  decree  of  the  Court  of  Claims  of  May  28, 
1906,  she  would  be  cut  off  from  participation  in  this 
fund. 

There  are  a  considerable  number  of  other  cases  similar 
to  the  above,  but  this  is  given  simply  for  illustration. 
It  is  probable  that  the  attention  of  the  Court  of  Claims 
was  not  drawn  to  cases  of  this  character  when  it  entered 
its  decree  of  May  28,  1906. 

While  discussing  this  proposition,  it  may  be  well  also 
to  call  attention  particularly  to  the  character  of  the  rolls 
of  1851,  and  to  point  out  some  of  the  defects  in  these 
rolls,  which,  it  is  believed,  were  not  brought  to  the 
notice  of  the  Court  of  Claims  at  the  time  of  the  entering 
of  its  decree.  The  rolls  of  1851  are  divided  into  two 
parts,  first,  the  Chapman  Roll,  which  includes  the  In- 
dians residing  east  of  the  Mississippi  River,  and  second, 
the  Drennen  Roll,  which  includes  the  Eastern  Cherokees 
residing  west  of  the  Mississippi  River.  The  Drennen  Roll, 
in  turn,  is  divided  into  nine  divisions  or  districts.  The 
Chapman  Roll  includes  2,134  names,  to  which  were  added. 


9 

by  special  act  of  Congress,  87  other  names;  this  roll  was 
based  upon  a  census  roll  made  b}'  D.  W.  Siler  in  1851, 
and  is  quite  complete  in  that  it  gives  the  names,  ages, 
and  relationship  of  all  the  Indians,  together  with  the 
locality  in  which  they  reside.  Considerably  more  than 
half  of  the  Indians  on  ihis  roll,  however,  are  enrolled 
under  their  Indian  names.  The  Drennen  Roll  of  the 
Eastern  Cherokees  west  of  the  Mississippi  River,  is  quite 
incomplete,  in  that  no  ages  are  given  and  the  relation- 
ship is  not  stated,  although  the  names  are  arranged  in 
what  is  supposed  to  be  family  groups.  This  roll  contains 
14,094  names,  more  than  half  of  which  are  Indian  names 
and  there  is  nothing  to  indicate  the  sex  of  the  persons 
so  enrolled  under  Indian  names. 

The  two  rolls  together,  therefore,  contain  16,315 
names,  of  which  9,000  or  10,000  are  Indian  names.  These 
Indian  names  were  recorded  as  the  agent  understood  it 
at  that  time,  and  it  is  natural  to  suppose  that  many 
inaccuracies  in  spelling  crept  in.  During  the  fifty-five 
years  which  have  elapsed,  these  Indian  names  have  been 
to  a  very  large  extent  abandoned;  in  other  cases  they 
have  been  changed;  and  in  many  others  there  would  be 
material  changes  in  the  recording  of  such  names,  owing 
to  the  different  interpretations  of  the  sound  put  upon 
the  name  by  the  person  transcribing  the  same.  To  illus- 
trate this,  let  me  call  attention  to  the  names  of  three 
Indians  which  appear  on  the  Chapman  Roll  of  1851,  and 
also  appear  on  the  earlier  Mullay  Roll  of  1848,  and  the 
later  Sweetland  Roll  of  1869,  and  the  Hester  Roll  of 
1884.  These  names  are  all  found  on  page  13  of  the  Hes- 
ter Roll  of  1884,  without  that  page  having  been  espe- 
cially selected  for  the  purpose.  The  names  will  be  given 
in  the  order  of  the  enrollment: 
First: 

Mullay  Roll  of  1848,  Xo.  350, 

the  name  is Talee-skes-kih; 


10 

Chapman   Roll    of    1851,   No. 

253,  the  name   is Te-lah-ska-skih; 

Sweetland   Roll   of   1869,  No. 

1065,  the  name   is Te-la-ska-ski; 

Hester  Roll   of  1884,  No.  454, 

the  name  is Ta-lee-ske-kih; 

And  under  the  head  of  "latest 

and  most  correct  spelling  of 

names  for  this  (Hester)  cen- 
sus" the  name  is De-lah-ska-skih. 

Second: 

Mullay  Roll  of  1848,  No.  309, 

the  name  is Ow-wah-soo-lee-kih; 

Chapman    Roll    of    1851,  No. 

1456,  the  name    is Kah-wah-soo-les-kih; 

Sweetland  Roll   of   1869,  No. 

873,  the   name  is Clau-tut-sih; 

Hester  Roll  of  1884,  No.  463, 

the  name  is Klat-en-tul-set; 

And  under  the  head  of  ''latest 

and  most  correct  spelling  of 

names  for  this  (Hester)  cen- 
sus" the  name  is Clahn-tah-chih. 

Third : 

Mullay  Roll   of  1848,   No.  29, 

the  name    is A-lar-chee; 

Chapman   Roll    of    1851,  No. 

419,  the  name   is John  A-lah-chih; 

Sweetland   Roll   of  1869,  No. 

335,  the  name   is John  Lar-chi; 

Hester  Roll   of  1884,  No.  464, 

the  name  is Alargih; 

And  under  the  head  of  "latest 

and  most  correct  spelling  of 

names  for  this  (Hester)  cen- 
sus" the  name  is Tsah-ne-lah-tsih. 

These  three  cases  illustrate  the  difficulties  that  will 
necessarily  arise  in  endeavoring  at  this  late  date,  fify-five 
years  after  the  original  enrollment,  to  connect  present 
claimants  with  their  ancestors,  who  were  enrolled  in 
1851  under  Indian  names — and  let  me   repeat  that   more 


11 

than  half  of  the  names  on  the  rolls  of  1851  are  in  Indian. 
In  the  case  of  the  Eastern  Cherokees  residing  east  of  the 
Mississippi  River,  who  were  included  under  the  Chap- 
man Ptoll  of  1851,  we  have  the  two  later  rolls  above  re- 
ferred to,  namely,  the  Sweetland  and  Hester  rolls,  to 
assist  in  the  investigation,  but  the  last  of  these  was  made 
up  more  than  twenty  years  ago.  In  the  case  of  the  Eas- 
tern Cherokees  residing  west  of  the  Mississippi  River, 
which  comprises  the  great  body  of  these  claimants,  we 
have  no  later  roll  to  assist  in  the  investigation,  as  the 
last  enrollment  of  the  Eastern  Cherokees,  as  such,  resid- 
ing west  of  the  Mississippi  River,  was  the  enrollment  of 
1851. 

With  the  great  lapse  of  time,  with  the  uncertainty  of 
spelling,  with  the  known  custom  among  Indians  to  change 
or  alter  their  names,  such  alterations  affecting  either  the 
beginning  or  the  ending  of  the  name,  and  being  some- 
times occasioned  by  serious  sickness  or  other  calamity 
occurring  in  the  family  which  would  induce  them  to 
make  a  complete  change  of  name,  serious  question  arises 
as  to  whether  or  not  it  is  practicable  to  trace  back  re- 
lationship in  many  of  these  cases  to  any  given  name 
upon  the  rolls  of  1851. 

So  much  for  the  cases  where  the  enrollment  is  under 
an  Indian  name,  but  the  difficulty  does  not  end  there,  as 
there  are  many  cases  where  only  what  we  w^ould  regard 
as  first  names  are  given.  For  example,  on  the  rolls  taken 
together  the  name  of  Nancy  by  itself  appears  176  times; 
the  name  of  Jinney  (in  the  three  sppllings  of  Jinnie, 
Jinney,  and  Jinny)  appears  90  times;  the  name  of  Betsey 
appears  86  times,  while  in  addition  to  this  the  Indian 
equivalent  to  Betsey,  Quaitsey,  api^ears  47  times;  Lucy 
appears  77  times;  John  appears  88  times;  George  appears 
65  times,  with  numerous  other  cases  of  single  names  ap- 
pearing from  25  to  50  times.  In  a  considerable  number 
of  these  cases  of  single  names,  some  family  name    might 


12 

be  inferred,  but  at  most  it  would  only  be  an  inference; 
in  man}^  others  no  family  name  at  all  could  be  gathered 
from  the  face  of  the  rolls,  and  the  name  would  stand 
simjily  by  itself. 

Another  source  of  difhculty  is  inaccuracy  in  the  origi- 
nal enrollment.  The  extent  of  this  we  can  not  as  yet 
estimate,  but  one  striking  instance  has  been  brought  to 
our  attention.  One  of  the  divisions  of  the  Drennen  Roll 
is  known  as  the  Illinois  District;  the  third  group  of  that 
district  is  as  follows: 

Polly  Gearin. 

Henr}^  Gearin. 

Ellis  Gearin. 

Fox  Gearin. 

Maria. 

Sarah. 

William  Barnet. 

Platoff  Lowry. 

A  group  of  eight  signed  for  by  Polly  Gearin,  by  mark. 

We  have  been  informed  that  this  group  consists  of 
the  mother,  Polly,  and  seven  children.  The  first  three 
children,  however,  who  are  distinctly  put  down  on  the 
roll  under  the  name  of  Gearin,  were  not  in  fact  named 
Gearin,  but  were  by  a  former  marriage,  and  bore  the 
name  of  Starr.  So,  too,  while  the  roll  indicates  Ellis  and 
Fox  Gearin  as  separate  individuals,  the  facts  are  reported 
to  be  that  there  was  a  child  named  Ellis  Fox  Starr,  and 
another  child  named  George  Starr;  the  two  names  of  the 
one  child  having  been  divided  up  and  made  into  two 
separate  individuals,  while  the  true  name  of  one,  George, 
was  entirely  omitted.  The  Maria  and  Sarah  named  in 
the  group  should  have  been  named  Gearin,  while  William 
Barnet  and  Piatoff  Lowry,  were  also  properly  named 
Gearin,  and  were  as  a  matter  of  fact  twins. 

While  doubtless  this  is  an  extreme  case,  it  forcibly 
illustrates  the  difficulties  that  are  bound   to  arise  in  en- 


13 

.  deavoring  to  make  a  per  stirpes  distribution,  using  the 
rolls  of  1851  as  a  basis. 

This  last  difficulty  is,  of  course,  purely  a  practical  and 
not  a  legal  one.  Of  the  same  nature  is  another,  which 
has  assumed  in  many  instances  very  large  proportions. 
That  is  the  great  number  of  shares  claimed  by  individual 
applicants,  by  reason  of  alleged  relationship  to  indivi- 
duals alleged  to  have  been  enrolled  in  1851.  A  few  cases 
may  be  cited: 

William  Elex  or  Elk,  of  Tahlequah,  Indian  Territory, 
wdio  states  that  he  was  born  in  North  Carolina  in  1852, 
files  application  No.  9817,  in  which  he  claims  through 
44  separate  lines,  besides  for  himself,  if  it  should  be 
found  that  he  was  enrolled.  These  relatives  consist 
of  grandparents,  great-uncles,  great-aunts,  father  and 
mother,  uncles  and  aunts,  brothers  and  sisters,  cousins, 
etc.  While  it  is  highly  improbable  that  this  claimant 
could  prove  himself  to  be  the  next  of  kin  to  all  of  these 
individuals,  yet  his  claim  would  have  to  be  examined 
with  reference  to  each  one — that  is  to  say,  an  examina- 
tion would  have  to  be  made  to  determine  which,  if  any, 
of  these  44  names  were  enrolled  in  1851.  P'urthermore, 
an  investigation  would  have  to  be  made  as  to  whether 
or  not  these  individuals  under  some  other  name,  or  un- 
der some  different  spelling  of  the  same  name,  may  not 
have  been  enrolled.  In  cases  where  the  names  are  found 
on  the  rolls  of  1851,  the  further  inquiry  would  have  to 
be  made  as  to  whether  or  not  these  individuals  were  in 
fact  dead.  If  so,  the  place  and  date  of  death,  and 
whether  or  not  they  left  direct  issue,  and  if  so  whether 
or  not  the  claimant  was  in  fact  in  the  relationship  of  one 
of  the  next  of  kin  of  such  party.  Also,  if  he  was  in  that 
relation,  the  further  inquiry  would  have  to  be  made  to 
g  determine  how  many  others  were    in    a  like  relationship, 

so  that  the  proportionate  part  of  the  share  might  be 
determined,  and  so  in  regard  to  each  of  the  others  found 
•  to  have  been  enrolled. 


14 

Another  instance  of  multiplicity  of  claims  may  be 
stated.  It  is  in  the  case  of  Polly  Russell,  who  files  appli- 
cation No.  10,397,  claiming  through  her  grandmother, 
Oc-tay-yah  Guess;  grandfather,  Tee-see  Guess;  father, 
George  Guess;  brother,  John  or  Benjamin;  half-brother, 
Oo-sac-see-tee;  uncle,  Dick  Guefes;  uncle,  Andy  or  Joe 
Guess;  uncle,  Bat  Guess;  aunt,  Sarah  Guess;  mother,  Gus- 
sti-yeah  Guess;  uncle.  Rider  Che-tee-lun-kee;  aunt  Che- 
os-sa;  aunt,  Liddy;  aunt,  Si-we-usu-gah;  uncle,  Oh-sca- 
seah-tee;  uncle,  Ou-ja-la-na-he;  cousin,  Jennie  Starr,  nee 
Bump;  cousin,  Liddy  Bump;  cousin.  Bill  Bump;  cousin, 
Wah-you-lah;  uncle,  Looney  Langley;  cousin,  Ancey 
Bump;  great  uncle,  Cur-lunt-es-gerner;  great  aunt, 
Polly,  and  their  daughter,  Tiana. 

In  submitting  this  case,  Messrs.  Watts  &  Curtis,  of 
Sallisaw,  Indian  Territory,  her  attorneys,  say:  ''We  hope 
that  you  can  make  something  out  of  these  outlandish 
names;   if  you  can  you  can  do  more  than  we  can." 

I  would  also  invite  your  attention  to  a  copy  of  appli- 
cation No.  10,606,  filed  herewith,  wherein  Eliza  Andre 
claims  through  53  different  lines;  and  also  a  copy  of  her 
letter  wherein  she  asserts  that  she  will  contest  the  right 
of  all  other  claimants  to  any  of  these  shares,  except  one 
double  first  cousin,  who  is  entitled  equally  with  herself. 

While  these  are  extreme  cases,  there  are  many  that  are 
similarly  involved  with  claims  made  through  ten  to 
twenty  individuals.  The  practical  difficulty  of  investigat- 
ing such  claims  must  be  manifest. 

As  furnishing  an  illustration  of  the  arithmetical  diffi- 
culties involved,  one  other  case  may  be  given:  Eleanor 
B.  Bell,  of  St.  Elmo,  Tennessee,  files  application  No. 
10,455,  stating,  "I  claim  one-fifth  of  one-seventh  interest 
in  the  shares  of  Albina  M.,  Alexander  H.  S.,  and  William 
Joseph  Bell;  also  one-fifth  of  one-seventh  of  one-sixth 
interest  in  the  shares  of  William,  Mary  A.,  William  E., 
and  Elizabeth  S.  Rogers  whose  names  are  on  the  roll  of 


15 

1851."  This  is  really  a  comparatively  simple  case  and  yet 
she  is  claiming  a  1-35  interest  in  three  shares,  and  1-210 
interest  in  the  shares  of  four  others.  It  follows,  of 
course,  that  it  will  be  necessary  to  locate  the  persons 
entitled  to  the  remaining  209-210  of  these  shares. 

It  has  been  suggested  that  under  the  terms  of  the 
decree  of  the  Court  of  Claims,  it  was  not  the  intention 
of  the  court  to  have  this  office  trace  out  the  next  of  kin 
of  deceased  Indians  enrolled  in  1851,  and  to  figure  out 
the  share  that  would  go  to  each  such  next  of  kin,  but 
that  all  that  was  designed  was  to  have  this  office  de- 
termine all  of  those  who  were  enrolled  in  1851,  who  are 
now  living,  thereby  necessarily  at  the  same  time  deter- 
mining those  who  are  now  dead.  It  would  then  be 
necessary  to  determine  the  time  and  place  of  death  of 
those  who  had  died,  and  have  administrators  designated 
by  the  appropriate  probate  courts.  After  such  adminis- 
trators had  been  duly  appointed  and  had  qualified  by 
giving  suitable  bonds,  the  share  of  the  decedents  would 
be  paid  over  to  such  administrators;  leaving  to  the  local 
probate  courts  and  to  such  administrators  the  task  of 
ascertaining  the  next  of  kin,  and  of  making  the  proper 
distribution  to  such  next  of  kin  when  so  ascertained. 

This  procedure  would,  no  doubt,  be  in  compliance  with 
the  literal  terms  of  the  decree,  but  it  would,  I  believe, 
be  an  innovation  in  the  practice  of  this  office,  and  it  is 
not  in  accord  with  my  understanding  of  the  intentions 
of  the  Secretary  of  the  Interior  and  of  this  office.  If 
such  is  to  be  the  procedure,  it  is  of  the  utmost  im- 
portance that  that  fact  should  be  determined  at 
the  earliest  possible  moment.  Some  serious  difficul- 
ties in  proceeding  in  this  way  may  be  suggested.  The 
difficulty  of  identification  of  the  deceased  individual  has 
already  been  adverted  to,  but  ndded  to  this  would  be  the 
difficulty  of  locating  the  exact  time  and  place  of  death, 
and    of    determining    what    probate   court    would    have 


16 

proper  jurisdiction  of  the  case,  and  who  was  entitled  to 
letters  of  administration.  Serious  injustice  might  result 
from  the  omission  of  individuals  entitled  to  share  in  the 
distribution  of  such  fund,  resulting  from  their  ignorance 
of  the  administration  proceedings,  either  because  of 
actual  lack  of  acquaintance  with  the  name  of  the  de- 
cedent as  enrolled  in  1851,  or  because  of  lack  of  knowl- 
edge of  the  localit}^  where  he  died.  Take  for  example  a 
case  such  as  is  disclosed  by  application  No.  6809,  filed 
by  Mary  E.  Carley  of  Sheep  Ranch,  California,  claiming 
through  her  father,  Clement  Vann  McNair.  He  W'as  born 
in  Tennessee,  was  living  in  the  Cherokee  Nation  in  1851, 
but  shortly  after  moved  to  California,  where  he  married, 
and  where  claimant  was  born,  and  where  her  father  died 
in  1897.  If  some  relative  of  McNair's  in  Indian  Terri- 
tory should  see  fit  to  ask  for  letters  of  administration 
there,  alleging  that  McNair  lived  there  in  1851,  and  had 
died  there,  or  had  not  been  heard  from  at  any  other 
point,  how  improbable  it  is  that  the  daughter  in  Cali- 
fornia would  ever  learn  of  the  proceedings.  In  this  case 
letters  might  possibly  be  taken  out  in  Tennessee,  Indian 
Territory,  and  California.  Difficulties  of  this  character 
would  be  much  more  frequent  in  cases  where  the  primary 
beneficiary  was  enrolled  in  the  east  in  1851,  but  moved 
to  Indian  Territory  afterward.  There  are  many  such 
cases.  Many  changes  of  residence  have  taken  place 
among  these  people. 

The  expense  of  administration  would  also  be  a  material 
item,  as  in  the  case  of  the  claimant  referred  to  above, 
where  there  were  fifty-three  shares  to  be  considered.  In 
order  to  maintain  her  rights  in  each  instance  it  might  be 
necessary  for  this  claimant  to  appear  before  as  many 
different  probate  courts,  and  there  litigate  her  rights  as 
one  of  the  next  of  kin  of  the  deceased.  But  leaving  out 
contested  cases,  in  which  the  expense  of  litigation  might 
easily  consume  the  entire  estate,  it  is  evident  that  with 
an  enrollment  of  16,315  in  1851  there  would  have  to  be 


17 

now  at  least  12,000  administrations.  Each  estate  would 
amount  to  about  S250,  and  allowing  the  administrat'  r 
10  per  cent  commission,  and  estimating  the  court  costs 
at  a  minimum  of  $10,  in  each  case,  the  total  cost  to  the 
Indians  would  be  over  §400,000,  which  would  be  in  addi- 
tion to  the  expense  of  this  office  in   making  up  the  rolls. 

Again,  it  seems  altogether  probable  that  there  may  be 
hundreds,  if  not  thousands,  of  names  on  the  rolls  of 
1S51  of  persons  who  can  not  in  any  way  be  identified. 
This  would  make  it  possible  for  persons  so  disposed  to 
ask  for  letters  of  administration  on  the  estates  of  such 
persons,  averring  the  date  and  place  of  death  at  some 
convenient  point,  publishing  the  same,  and  under  some 
claim  of  relationship  securing  the  money;  there  being  no 
one  having  sufficient  knowledge  of  the  facts,  or  of  the 
proceedings,  to  controvert  any  of  these  statements  or, 
in  fact,  to  create  sufficient  interest  to  cause  an  investi- 
gation into  the  rights  of  such  claimants.  In  these 
instances  unless  the  Department  should  assume  the 
responsibility  and  the  Inirden  of  investigating  each  case 
where  such  apjjlication  was  made,  opportunities  for  fraud 
would  be  almost  unlimited. 

On  the  other  hand,  if  administrators  are  not  to 
be  appointed  and  the  per  stirpes  distribution  is  to 
be  retained,  grave  difficulties  will  arise  in  determining 
who  are  in  fact  the  next  of  kin  of  any  given  decedent; 
what  laws  of  distribution  must  appl}';  whether  a 
husband's  right  should  be  recognized  in  the  estate 
of  his  deceased  wife,  and  vice  versa.  As  an  example 
of  these  difficulties,  the  application  of  Catharine  Craig, 
No.  9418,  may  be  given.  In  it  she  claims  as  wife  of  Frank 
W.  Craig,  deceased,  who  was  born  in  Missouri,  in  1854. 
She  claims  the  interest  of  her  husband,  in  his  mother's 
right,  and  also  the  interest  of  her  husband,  in  his  brother's 
right.  Assuming  that  ai)plicant's  mother-in-law,  Eliza 
Craig,  was  enrolled  in  1851,  and  that  her  brother-in-law, 

■i896-3 


William  Craig,  was  likewise  enrolled  in  1851,  the  questions 
involved  would  be,  did  Eliza  Craig  and  William  Craig 
die  in  Missouri;  if  so,  when;  did  the  husband,  Frank  W. 
Craig,  survive  them;  was  he  the  sole  next  of  kin  of  the 
said  Eliza  Craig  and  William  Craig;  did  he  die  without 
issue;  what  was  the  law  of  distribution  at  the  place  of 
death  of  Eliza  Craig  and  William  Craig,  and  at  the  place 
of  death  of  the  husband,  Frank  W.  Craig?  Under  the  law 
of  distribution  applicable  in  those  cases,  would  the 
widow  have  any  rights?  If  so,  what  would  be  the  extent 
of  those  rights?  Innumerable  questions  as  to  the  law  of 
distribution  would  necessarily  arise. 

As  the  Indians  have  i^een  so  widely  scattered  through 
so  many  States  and  Territories,  and  the  laws  of  distribu- 
tion have  been  changed  so  frequently,  no  uniform  rule 
would  seem  possible. 

It  has  been  suggested,  and  with  some  force,  that,  at 
least  up  to  the  time  of  the  judgment  entered  in  this 
case,  there  was  no  property  rights  vested  in  any  of  the 
Indians,  which  could  properly  be  the  subject  of  the  laws 
of  administration  and  distribution;  that  there  was  only 
a  right  of  action  against  the  United  States  which  could 
not  be  enforced  except  by  the  consent  of  the  United 
States,  and  that  right  was  vested  in  the  band  of  Eastern 
Cherokees  rather  than  in  any  individual  Eastern  Cherokee. 

In  view  of  the  difficulties  set  forth  above,  I  respect- 
fully suggest  that  this  matter  be  called  to  the  attention 
of  the  Honorable  Secretary  of  the  Interior,  in  order  that 
he  may  consider  the  advisability  of  referring  the  matter 
back  to  the  Court  of  Claims  for  further  instructions.  If 
such  reference  is  made,  I  would  further  suggest  that 
questions  similar  to  the  following  should  be  submitted 
to  the  court  for  its  determination: 

First.  Should  the  language  of  the  second  paragraph  of 
the  decree  of  the  Court  of  Claims  of  May  28,  1906,  that 
"it  is  further  ordered  and  decreed  that  the  Secretary  of 
the  Interior  prepare,  or   cause   to   be  prepared,  a  list  or 


19 

roll  of  all  persons  coming  within  the  said  description 
entitled  to  share  in  the  distribution  of  said  fund;  and  in 

[  preparing  the  said  list  or  roll  of  such  persons,  the  Secre- 

tary of  the  Interior  shall  accept  as  a  basis  for  the  distribu- 
tion of  said  fund  the  rolls  of  1851,  Upon  which  the  per  cap- 

'  ita  payment  to  the  Eastern  Cherokees  was  made,  and  make 

such  distribution  in  pursuance  of  article  9  of  the  treaty 
of  1846,"  be  so  construed  as  to  exclude  from  enrollment 
claimants  who  can  establish  the  fact  that  their  ancestors 
w^ere  Eastern  Cherokees  at  the  time  of  the  Treaty  of  New 
Echota  of  1835-6,  and  were  enrolled  as  such  under  said 
treaty,  but  who  are  unable  to  prove  either  that  they 
w^ere  themselves  enrolled  with  the  Eastern  Cherokees  for 
the  per  capita  payment  on  the  rolls  of  1851,  or  that  they 
are  the  legal  representatives  of  some  one  who  was  so  en- 
rolled in  1851?  In  other  words,  shall  the  rolls  of  1851  be 
taken  as  the  basis  for  the  present  enrollment,  to  the  ex- 
clusion of  all  persons  not  enrolled  in  1851,  or  not  directly 
tracing  through  some  one  so  enrolled  at  that  time,  not- 

^  withstanding  such  persons  could  prove  that  they  or  their 

ancestors  were  duly  enrolled  under  the  Treaty  of  New 
Echota  in  1835-6? 

Second.  Is  the  distribution  to  be  per  stirpes  or  per 
capita? 

Third.  If  per  stirpes,  from  what  time?  This  question 
is,  of  course,  dependent  upon  the  answer  to  the  first 
question,  for  if  the  rolls  of  1851  are  to  be  the  exclusive 
basis  for  the  enrollment,  that  would  fix  the  time. 

Fourth.  If  the  payment  is  to  be  made  per  stirpes, 
must  each  present  beneficiary  be  enrolled,  and  the  exact 
amount  due  each  determined  and  payment  made  to  him 
direct,  or,  must  administrators  upon  the  estates  of  the 
primary  beneficiaries  be  appointed,  and  the  shares  of  the 

^  decedents  paid   over  to   such  administrators,  leaving  to 

^  the  local  courts  to  determine  the  laws  of  descent  appli- 

cable to  each  case,  and   the  persons  who  are  the  next  of 
f  kin  entitled  to  participate  in  such  estates? 


20 

Fifth.  If  the  payment  is  to  be  made  per  stirpes  what 
disposition  shall  be  made  of  the  shares  of  primary  bene- 
ficiaries, who  left  no  knov/n  next  of  kin;  or  where  no 
letters  of  administration  have  been  taken  out  upon  the 
estate  of  such  primary  beneficiaries? 

Sixth.  If  the  payment  is  to  be  made  per  capita,  as  of 
what  date  shall  the  enrollment  be  made? 

There  have  already  been  filed  over  17,500  applications, 
and  by  the  31st  of  March,  the  time  now  limited  for  the 
filing  of  applications,  there  will  probabl}^  be  something 
over  20,000  such  applications. 

Pending  the  determination  of  the  questions  above  in- 
dicated there  is  ample  work  to  keep  the  present  force 
engaged  in  making  the  preliminary  examination  of  these 
applications,  having  omissions  supplied,  and  grouping 
them  into  families,  so  that  the  claims  of  relatives  may  be 
considered  together.  No  matter  what  answers  may  be 
given  to  the  above  questions  this  work  will  have  to  be 
done. 

Although  I  have  known  of  several  of  the  difficulties 
referred  to  above  for  sometime,  I  thought  it  best  to  wait 
until  the  whole  matter  had  been  fully  developed  before 
asking  for  further  instructions,  so  that  all  questions  to 
be  raised  might  be  disposed  of  together.  I  believe,  how- 
ever, that  thp  i'"'^ts  have  now  been  fully  disclosed,  and  if 
the  matter  is  to  be  referred-  to  the  Court  of  Claims  it  is 
important  that  this  should  be  done  in  time  to  secure,  if 
possible,  a  ruling  from  that  court  before  the  summer 
vacation. 

I  inclose,  herewith,  a  copy  of  the  order  of  August  20, 

1906,  referred  to  above,  which  was  in  fact  only  the  formal 

notice  to  claimants  to  file  claims,  which  notice  was  duly 

approved  by  the  Secretary  of  the  Interior,  before  issuance. 

Very  respectfully, 

GUION  MILLER, 
Special  Agent  for  the  Enrollment 
of  Eastern  Cherokees. 


